타인 생활영역의 권한 없는 개입과 이득반환: 법사학적 고찰

Abstract

The Korean Civil Code (hereinafter “KCC”) has provisions of law of unjustified enrichment (Art. 741 et seq.), claim for reimbursement of possessor (Art. 203) and intervener contrary wishes of the principal (Art. 739(3)) for the officious intermeddling cases. Although the KCC has the general rule of law of unjustified enrichment, having separate provision such as Art. 203 and Art. 739(3) can only be understood from a historical perspective since Roman law. There were various cases in Roman law regarding the intervention in anothers’ affairs from the pre-classical period through the classic period to the time of Justinian. It is observed that the tendency was to recognize the restitutionary relief although in a limited extent even in case the intervener had not the intention to act on another’s behalf (Ulp.D.3.5.5). Later, the Emperor Justinian considered the notice of prohibition to the intervener as a standard for case resolution (C.2.18.24). In case of improvement of land which belongs to another, however, only the right to take materials down was confer to the intervener in bad faith so long as it is without loss to the owner of the land (C.3.32.5). Finally, it is notable that the economic circumstances of the principal obliged to reverse enrichment was considered in view of the fact that it is unsolicited and imposed to him (Cel.3.32.5). In conclusion, the author solves some cases of unsolicited or imposed enrichment (“car wash cases”) and presents some implications.